New contraception ruling draws female justices’ ire

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WASHINGTON — In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.

The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act.

The court’s order was brief, provisional, and unsigned, but it drew a furious reaction from the three female members — justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. The order, Sotomayor wrote, was at odds with the court’s 5-4 decision Monday in Burwell v. Hobby Lobby Stores, which involved for-profit corporations.

“Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

The court’s action, she added, “undermines confidence in this institution.”

Monday’s decision and the order Thursday were dual blows to the Obama administration’s efforts to provide contraception coverage, said Walter Dellinger, who was acting US solicitor general in the Clinton administration.

“Before the Hobby Lobby ruling, women had guaranteed contraceptive coverage as part of their employment health insurance,” he said. “After today, it is clear that their access to contraception is by no means guaranteed given the administrative complexities the court has now imposed upon” the Department of Health and Human Services.

Sotomayor said the majority had not only introduced pointless complexity into an already byzantine set of regulations, but it had also revised its Hobby Lobby decision.

That decision, Sotomayor said, endorsed an arrangement allowing nonprofit groups to sign a form that would transfer the delivery of free contraception under the Affordable Care Act to others. But Thursday’s order rejected the mandatory use of the forms for Wheaton College in Illinois.

Sotomayor said the ruling reached beyond Wheaton and could lead to similar results at many other nonprofit religious organizations that have similar concerns. “The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” she said.

Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, which represents Wheaton, said, “The court rightly recognized that Wheaton’s religious community should be allowed to practice its faith free from crushing government fines.”

The majority opinion in the Hobby Lobby case on Monday, written by Justice Samuel Alito, seemed to suggest that the forms could play a role in an arrangement that was an acceptable alternative to having employers pay for the coverage.

On Thursday, the court’s majority said all Wheaton had to do was notify the government in writing “that it is a nonprofit organization that holds itself out as religious and has religious objections to covering coverage for contraception services.”